Abstract
The above is an adaptation into normative discourse of the classical syllogism. In order for it to work, for the purposes which we want it to perform,1 we need to establish a number of links between the rule that the legislator has enacted, and the acts which Socrates has performed. First, we have to establish what Socrates did in fact do, and our principal means of doing this is through the testimony of witnesses (even in classical Greece). Secondly, we have to ascribe a legal character to the facts so found (do they constitute “blasphemy”?). Third, we have to be satisfied that the words used by the legislator “cover” this case. It is only if these conditions are satisfied that we would, conventionally (though not necessarily rightly), say that the judgement on Socrates is legally justified.
All persons who blaspheme the gods are liable to be executed
Socrates has blasphemed the gods.
Therefore Socrates is liable to be executed.
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References
See further, infra, 2, p. 11.
Most recently, and notably, Neil MacCormick, “Legal Deduction, Legal Predicates and Expert Systems”, The Modern Law Review (1988) I am grateful to Professor MacCormick for sending me an advance copy of this paper, and for engaging in an illuminating correspondence about it.
There is, it is true, a contemporary trend to downgrade the status of legislative intention as an interpretive tool in legal adjudication. But the context of such debates is largely that of “hard cases”, which we claim (or at least Hart claims) to be the exception rather than the rule.
Supra n. 2.
See my Semiotics and Legal Theory, London, Routledge & Kegan Paul, 1985, pp. 1417; “Emerging Issues in Legal Semiotics”, Revue de la Recherche Juridique. Droit Prospectif (1986–2), pp. 17–37; “Semiotics and the Problem of Interpretation”, in this volume, p. 84.
P.F. Strawson, “On Referring”, Mind 59 (1950), pp. 320–344, reprinted in G.H.R. Parkinson, The Theory of Meaning, Oxford University Press, 1968, pp. 61–85. and in Strawson’s Logico-Linguistic Papers, London and New York: Methuen, 1971, pp. 1–27.
: 68, 1971:8.
: 66–70.
My example.
Semiotics and Legal Theory, passim; “Semiotics and the Problem of Interpretation”, in this volume, p. 84.
It might be argued that: “the king of France” was used in the original legislation not as a uniquely-referring term in the normal sense, but rather as a term capable of being rendered uniquely-referring by the means of rules of succession contained elsewhere in the Constitution. But such an argument either extends the notion of reference to such an extent as to deprive it of all extension, or requires a theory of denotation (considered below).
Rather than computers. See my “On the Tyranny of the Law”, Israel Law Review 18 (1983), pp. 327–347.
See B.S. Jackson, “Kelsen between Formalism and Realism”, Liverpool Law Review, VII (1) (1985), pp. 79–93.
Keith S. Donnellan, “Reference and Definite Descriptions”, Philosophical Review 75 (1966), pp. 281–304. For Searle’s response see John R. Searle, Expression and Meaning, Cambridge: Cambridge University Press, 1979, ch. 6. See also the response of Alfred F. Mackay, “Mr. Donnellan and Humpty Dumpty on Referring ”, Philosophical Review 77 (1968), pp. 197–202, to which Donnellan replied in “Putting Humpty Dumpty Together Again”, Philosophical Review 77 (1968), pp. 203–215. See also John Lyons, Semantics, Cambridge University Press, 1977, Vol. I, p. 185 f.
Expression and Meaning, supra n. 14, at p. 141.
Ibid., p. 141.
Ibid., p. 143.
Reference is achieved with a variety of syntactical devices, among them proper names, definite descriptions and pronouns, including demonstrative pronouns (i e. deictic expressions). “And speakers will be able to use these devices to refer to objects in virtue of standing in certain relations to the objects. For example, a speaker might know the proper name of the object, or he might know some facts about the object, or he might be able to see it in his field of vision, or he might be sitting on top of it, etc… whenever a speaker refers he must have some linguistic representation of the object… and this representation will represent the object referred to under some aspect or other. An utterance of ”Smith’s murderer“ represents an object under the aspect of being Smith’s murderer, ”Jones“ represents an object under the aspect of being Jones, ”that man over there“ represents an object under the aspect of being that man over there…” Ibid., p. 142. He distinguishes between referring to something under its primary aspect and referring to something under its secondary aspect: by secondary aspect he means the definite description or other expression which is used by the speaker in an attempt to secure reference to the object which satisfies his primary aspect, the primary aspect containing the truth conditions, the secondary aspect not intended as part of the truth conditions of the statement he is attempting to make. (p. 146). not be true of anything. Whether or not the utterance of a sentence to make a statement contains a definite description used as a primary aspect or a secondary aspect depends on the intention of the speaker, that is, it is a matter of the statement he is making and not just of the sentence he utters.“ (ibid., p. 150)
The primary aspect of the speaker’s reference, Searle argues, is expressed by ‘Republican candidate in 1964’; he has no other aspects under which he can refer. But these facts do not show that the utterance is not referential.
bid., p. 151.
On the analogy of the presidential nomination, one could say that the major premise of the normative syllogism refers (in Searlé s sense), in that the primary aspect is the aspect referred to, since at the time of the legislation, the primary aspect is all one has. This might have to be qualified in the following respect: the primary aspect (the content of the expression in the rule which forms the major premise of the normative syllogism) is all one has in terms of historic facts in the world: all one has is a linguistic proposition of a general character. But one has more than this in a different sense: there are at least core cases - those which (within legislative or doctrinal discourse, but not within adjudicatory discourse) one would regard as falling within the semantic core of the rule, even though these are not historic facts, but propositions which may or may not be instantiated in the future. This feature, however, derives from the fact that the major premise typically uses non-uniquely referring expressions.
Pure Theory of Law, Berkeley and Los Angeles, University of California Press, 1967, ch. 8, p. 46.
Expression and Meaning, supra n. 15, ch. 5.
See his criticism of Kripké s idea of general intentions, ibid., pp. 155–157.
Lyons, supra n. 14, at p. 207.
ibid., at p. 209 ff., arguing inter alia for the epistemological priority of sense to denotation.
Ibid. at I, pp. 207–208.
Ibid., at p. 213. Cf., now, H.L.A. Hart, Essays in Jurisprudence and Philosophy, Oxford, The Clarendon Press, 1984.
The claim here made of judicial control over ordinary usage in court is hardly contradicted by either the fact that the legislator, as Hart has pointed out, sometimes uses standards intended to be judged according to the criteria of the ordinary man, or of common sense (“fair”, “reasonable”, etc.), nor by those occasions when the judge explicitly tells a jury to give a word (e.g. “dishonestly” in the Theft Act 1968) its ordinary meaning, nor even by the paper-rule of statutory interpretation that words of the ordinary language are “ordinarily” to be given their ordinary meaning. In all these instances, the judge is still the master. What the law does is to construct its own version of (permitted) ordinary meaning. Positivists would (indeed must) account for this in terms of a theory of incorporation. Just as morality is not to be counted as an independent source of law, merely by virtue of the fact that a constitution, statute, or indeed judge authorizes its incorporation into the legal system for particular purposes, so too can ordinary language not be regarded as a direct source of legal discourse, since it too operates only within the confines of institutional incorporation.
Lyons, p. 208: “In the first instance to lexemes”. He goes on to discuss its applicability to predicative and referring expressions, personal and demonstrative pronouns, and descriptive noun phrases, but not to whole sentences.
Semiotics and the Problem of Interpretation“, in this volume, part II.
W.B. Gallie, Peirce and Pragmatism, Penguin Books, 1952, pp. 115–116.
A concrete, “casuistic” form, with protasis (containing the conditioning facts) and apodosis (conditioned consequences), not unlike the structure of Kelsen’s norm, is typical of ancient and medieval collections of written law. For an interpretation of this phenomenon in terms of cognitive developmental psychology, see my “Historical Aspects of Legal Drafting in the Light of Modern Theories of Cognitive Development”, International Journal of Law and Psychiatry 3 (1980), pp. 349–369.
Narrative Models in Legal Semiotics“, in Narrative in Culture, ed. C. Nash, London, etc.: Routledge and Kegan Paul, forthcoming.
See further B.S. Jackson, “The Narrative Model of the Trial: Semiotics and Social Psychology”, European Yearbook for the Sociology of Law (1988).
As suggested by some participants at the Florence symposium.
Mental Models, Cambridge University Press, 1983.
Relevance, Blackwell, 1986.
Justification is a discourse of its own. Narrative can certainly be used in it, but where this is done, the narrative of the minor premise is arbitrarily cut down to a level of abstraction where a correspondence relationship may, indeed, be established with the underlying narrative of the major premise. This process, however, can only be achieved at the cost of arbitrary excision of particularities of the case which may well be relevant for decision-making but not for justificatory (quasi-doctrinal) discourse. In other words, a different narrative again is created for the purposes of justification.
See my article cited above, note 35.
Marcus Stone, Proof of Facts in Criminal Trials, Edinburgh, W. Green & Son Ltd., 1984, p. 269.
See my article cited above, note 35.
Semiotics and Legal Theory, supra n. 5, Pt. II.
To be understood in the context of the Greimasian “polemic” semio-narrative structure, whether we are dealing with the explicitly “adversarial” common-law trial process or the apparently non-polemic inquisitorial trial process of the civil law.
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Jackson, B.S. (1990). The Normative Syllogism and the Problem of Reference. In: Nerhot, P. (eds) Law, Interpretation and Reality. Law and Philosophy Library, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7875-2_17
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